Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Edwards v Western NSW Local Health District [2024] NSWCATAD 121 Hearing dates: 16 April 2024 Date of orders: 24 April 2024 Decision date: 24 April 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: P Roney KC, Senior Member M Maher, General Member Decision: The Applicant's complaints of racial discrimination and racial vilification are dismissed. Catchwords: HUMAN RIGHTS-ANTI-DISCRIMINATION – RACE DISCRIMINATION – where comments made about applicant's niece's newborn indigenous child – where applicant was present to hear the infant referred to as "little monkey" or "cheeky little monkey" in a hospital birthing suite by a hospital staff member - whether that was racial discrimination - ANTI-DISCRIMINATION – RACIAL VILIFICATION - whether a newborn was publicly called a derogatory name in the presence of a family member– public act – communication to the public – racially based insults directed to a party in a hospital birthing ward-– incite serious contempt and severe ridicule. HUMAN RIGHTS – remedies compensation– apology – public statement Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Wotton v Queensland [No 5] (2016) 352 ALR 146 R v Ashley [1991] NTSC 19; (1991) 77 NTR 27 Barry v Futter [2011] NSWADT 205 Wolf v Secretary, Department of Education [2023] NSWCATAD 202 Riley v State of NSW (Department of Education) [2019] NSWCATAD 223 Sunol v Collier (No 2) [2012] NSWCA 44 Comensoli v Passas [2019] NSWCATAD 155, Lamb v Campbell [2021] NSWCATAD 103, Ekermawi v Commissioner of Police, NSW Police Force [2019] NSWCATAD 79, Malenha v Sullivan [2017] NSWCATAD 222. Burns v Dye [2002] NSWADT 32 Veloskey v Karagiannakis [2002] NSWADTAP 18 Burns v Cunningham [2011] NSWADT 240 Margan v Manias [2015] NSWCA 388 Kane v Church of Jesus Christ Christian Aryan Nations (No 3) (1992) 18 CHHR 268 Macedonian Teachers' Association, Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8 Qantas Airways Ltd v Gama (2008) 167 FCR 537 Burns v Dye [2002] NSW ADT 32. Huenerberg v Murray [2023] QCAT 175 Deen v Lamb [2001] QADT 20 Wilson & McCollum v Lawson & Anor [2008] QADT 27 Peters v Constance, [2005] QADT 9 Menzies & Ors v Owen, [2008] QADT 20 Jones v Trad (2013) 86 NSWLR 241 Lamb v Campbell [2021] NSWCATAD 103 Campbell v Kirstenfeldt [2008] FMCA 1356 Kazak v John Fairfax Publications Limited [2000] NSWADT 77 Ekermawi v Jones (No 3) [2014] NSWCATAD 58 Kazak v John Fairfax Publications Limited [2000] NSWADT 77 Texts Cited: None cited Category: Principal judgment Parties: Janice Edwards (Applicant) Western NSW Local Health District (Respondent) Representation: Applicant (Self-Represented) Crown Solicitor (Respondent) File Number(s): 2023/00429924 Publication restriction: Nil REASONS 1. The applicant seeks compensation and an apology from the respondent Health District arising from a racist comment she alleges were made in her presence in a birthing ward at the Dubbo hospital on the 18th of August 2022. She contends that one of the midwives present for the birth of her Grandnephew referred to the newborn, who was the child of her niece as a "little monkey". 2. She contends that the making of this remark and also some subsequent conduct relating to a complaint that she raised about it and the failure to communicate with her about the outcome of the investigation of that complaint constituted both unlawful discrimination on the basis of race and also vilification on the ground of her race or that of her group. 3. Section 7 of Anti-Discrimination Act 1977 (the AD Act) provides that a person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if the perpetrator-(a) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race. 4. S.7 (2) provides that for the purposes of s. 7(1) something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race. 5. Section 19 of the AD Act is the provision applicable to the conduct complained of It provides: 19 Provision of goods and services It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race- (a) by refusing to provide the person with those goods or services, or (b) in the terms on which the other person is provided with those goods or services. 1. Services" are defined in s 4 of the AD Act as including: (a) services relating to banking, insurance and the provision of grants, loans credit or finance (b) services relating to entertainment, recreation or refreshment (c) services relating to transport or travel, (d) services of any profession or trade (e) services provided by a council or public authority, services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not 1. Racial vilification is prohibited by s 20C of the AD Act, which is in the following relevant terms: 20C Racial vilification unlawful (1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group. (2) Nothing in this section renders unlawful— (a) a fair report of a public act referred to in subsection (1), or (b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or (c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter. 1. A "public act" is defined as follows in s 20B of the AD Act: 20B Definition of "public act" In this Division, public act includes (a) any form of communication to the public, including speaking, writing, printing displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and (b) any conduct (not being a form of communication referred to in paragraph (a) observable by the public, including actions and gestures and the wearing or display of clothing. signs, flags, emblems and insignia, and (c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group. What does "on the ground of race" mean in the AD Act 1. As may be seen above both provisions relied on here as having been infringed require that the conduct be "done on the ground of the person's race". Neither party made submissions directed to the legal principles relevant to that issue. There are numerous variations and permutations of this expression "on the ground of…" and similar expressions to be found in the State and Commonwealth laws that deal with race discrimination and racial vilification. In some states the expression used is that the offending act needs to have been done "on the basis" of an attribute, such as race. 2. Liability under Sections 9 and 11–16 Racial Discrimination Act 1975 (Cth) depends on whether the relevant act was done 'based on race'. Courts have adopted a purposive approach to interpreting this requirement. In particular, courts have focused on the 'essential nature' of the respondent's conduct, rather than the motive or intention of the respondent, as this approach assists in eliminating racial discrimination in all its forms and manifestations. This is different to the requirement in s 18C that the relevant act is done 'because of the race … of the other person'. 3. In Wotton v Queensland [No 5] (2016) 352 ALR 146 [534]– [540] Mortimer J identified what she said was the outcome-based limb of s 9 focuses on the 'purpose or effect' of the relevant act on the human rights of the relevant person or group. Her Honour emphasised that s 9 focuses on the 'actual outcome', or the practical consequences, of the act, rather than the motive or intent of the respondent. In relation to the word 'effect', her Honour stated that a 'qualitative assessment of the impact of conduct' is required. This necessarily involves examining the circumstances surrounding the relevant act, including its consequences for the complainant. Her Honour emphasised that s 9 is concerned with achieving substantive, rather than merely formal, equality. 4. Wotton involved a claim of racial discrimination made against members of the Queensland Police Service ('QPS') regarding their treatment of Aboriginal people during a period of heightened tension between the Aboriginal community and police in a remote community. Affirming the principles outlined above, Mortimer J stated at p 289 [553] that the existence of 'laudable motives, appreciable difficulties or understandable dilemmas [on the part of the QPS] will not prevent or preclude a contravention of s 9 where it can nevertheless be said that the impugned conduct … was based on race'. 5. In Macedonian Teachers' Association, Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8, 33–4 71 Weinberg J distinguished the words 'based on race' (used in s 9) from 'because of race' (used in ss 11–16). His Honour held that the former (in contrast to the latter) does not imply any causal requirement but connotes that the act be done, or undertaken, by reference to race. That approach was endorsed by the Full Federal Court in Bropho v Western Australia [2008] FCAC 100; [2007] FCA 519. 6. In Wotton, Mortimer J said at [551]– [553] adopted this reasoning, interpreting 'based on race' as focusing on the 'essential nature' of the relevant act. Her Honour held that the character of the act must be determined by examining all the surrounding circumstances, including the consequences of the act. 7. The reference to race need not be explicit for a statement to be based on race. In Wotton, Mortimer J said at 290 [559], quoting Qantas Airways Ltd v Gama (2008) 167 FCR 537 at 564 [76] (French and Jacobson JJ) The making of a remark is an act. It may be that the remark involves a distinction because it is made to a particular person and not to others. The remark may convey no express or implicit reference to the person's race, colour, descent or national or ethnic origin. Nevertheless, a linkage may be drawn between the distinction effected by the remark and the person's race or other relevant characteristic by reason of the circumstances in which the remark was made or the fact that it was part of a pattern of remarks directed to that person and not to others of a different race or relevant characteristic. Where the remark, critical of one person in a group but not others, expressly or by implication links the criticism or denigration to that person's race then that linkage establishes both the distinction and its basis upon race. 1. As mentioned above, Mortimer J adopted an approach that focuses on the essential nature of the relevant act, rather than the respondent's motive or intention. In particular, her Honour noted that 'the basis of the impugned conduct must not be conflated with intention or subjective purpose [of the alleged discriminator]'. 2. Although the language to be found in the AD Act (NSW) of something being said "based on race" is linguistically different prohibitions of statements "done on the ground of the person's race" (Rd Act Cwth) or said "on the basis" of race (AD Act Qld), it does seem to us that for present purposes, the question remains the same or substantially the same, focusing on what is the 'essential nature' of the relevant act. To be determined by examining all the surrounding circumstances, including the consequences of the act. The factual background 1. The applicant is of Aboriginal a descendant, through her father, of the Cunja Nation and through her mother a descendant of the Ngemba nation. 2. On the 18th August 2022 she went to the Dubbo Base hospital as her niece was a patient at the hospital due to give birth to a child. She was present that day for the birth along with another of her family, a "niece in law" a Ms Kimesha Pallister. It is common ground that each of the 3 of them was in the birthing room when the child was born. The applicant contends that when the child was born the mother had complications and needed stitches and held the baby for only a short time whereupon the applicant asked the mother to pass the baby to her until the doctor finished with her and the applicant then was given the baby to hold. 3. The applicant gave evidence that at the time all these events happened there were one or more doctors in the room and other nurses as well. She contends that it was then that what she calls "a young nurse" who has since been identified as a registered midwife, Ms Norton who was employed at the hospital, came over to her and said in a loud tone "pass the little monkey here, I have to do some tests on him". 4. She contends that the making of this statement was discrimination against her on the ground of race because the statement maker did so on the ground of her race or that of the child. She contends that the making of this statement involved treatment of her less favourably than in the same circumstances or in circumstances which are not materially different than the perpetrator treated or would treat a person of a different race or as it was put in this specific case, a person who is not aboriginal or was white. 5. We pause to note that the circumstances here are rather out of the ordinary in that the comment referencing a monkey was not about the applicant herself and was not a form of racial insult directed to her, but was said about one of her distant family members namely the newborn son of her niece. In final addresses the applicant, who was self -represented struggled to articulate a case as to how the conduct in question fell within the definition of discrimination on the grounds of race in section 7 of the Act when the comment referred to the child. Indeed, she made no submissions directed to any legal principle relevant to the issues to be resolved in the matter. Sadly, much the same can be said of the submissions made for the respondent. This then left the task of doing so with the Tribunal. 6. It is not in dispute that the conduct occurred in the context of the provision of services within the meaning of section 19 and section 4 of the Act. 7. Nor is it in contest that if the conduct in question amounted to unlawful discrimination or racial vilification that the respondent is vicariously liable for the conduct of Ms Norton 8. The applicant also contends that the making of the relevant statement was a public act as defined in section 20B because of the number of people who were present in the room at the time. 9. There are secondary or ancillary claims which are made, which are also said to amount to such unlawful conduct under both heads which concern the alleged failure by the hospital authority to notify her of the outcome of an investigation into these events, it conducted into the incident. The conflict on the evidence as to the words used 1. There is a dispute about what words and in what context Ms Norton said the words in question on the 18th August 2022. 2. There are various versions of what was said referred to in the applicant's material. We have set out above what she describes in her affidavit. She has no contemporaneous record of what was said that day. A different version is referenced in her complaint to the Board which referred to under calling her new born nephew "a monkey". There is a word crossed out in the form adjacent to the word monkey which is a word that clearly ends with the letter Y. In a testimony, the applicant suggested the word crossed out might be "little", but then when it was pointed out that it ended with the letter "y" she suggested that it was a crossed-out version of the word monkey. If it was that word, it would be difficult to see why it would be misspelled or need to be crossed out. 3. Elsewhere in the same form in her complaint to the Board at page 7 the applicant again refers to the words used as being calling a newborn baby a monkey. There is other contemporaneous evidence. One part of that is the next day, a Messenger message to Ms Norton, which refers to "little monkey" which has an element of endearment when referring to a child, that possibly merely calling someone a monkey does not. 4. A person appointed later to investigate the complaint, Kaye Simpson, who was not called as a witness and about whom it was said that she was in a temporary position and did not return after conducting the investigation, recorded that the applicant described the incident as being the making of a statement "give the little monkey here". 5. There is no evidence from anyone else that was in the birthing ward that day apart from Ms Norton and the applicant. Ms Norton said in her affidavit that she did not use the phrase little monkey saying that it is possible that she referred to him as a "cheeky little monkey". She said this was a phrase she commonly used when interacting with newborns. Her evidence on this issue somewhat firmed when she gave evidence at the hearing. She said that at the time she made a statement she was there at the end of a difficult labour and was acting as the second midwife, she was assisting the paediatric registrar and was providing respiratory support to the baby. She swore that the baby himself was in difficulty and was born stunned and had significant respiratory distress. We accept her evidence as reliable on this issue as to what was said and why. 6. In her affidavit Ms Norton said she might have used the expression "cheeky monkey" in a conversational way during the process of testing the breathing and handing the child back to its mother. In her testimony before us at the hearing she said it was common for her to use the expression "cheeky little monkey" and did so to lighten the mood and to relieve stress in what was a stressful situation. She swore that she used that expression in an enduring way and not in a negative or derogatory way. She said she had heard other midwives and nurses use the expression silly or cheeky little monkey and it had never been used in a derogatory way on any of those occasions. She swore that she was saying this in a stress relieving way. 7. Ms Norton said and we accept that she had seen others use that expression and she herself had used it to describe the children of both indigenous and non-indigenous people. When she had used the expression before at no time had any colleague or superior ever told her that it was inappropriate, although certainly that practice changed after this incident, no doubt because of the reaction of the applicant to it but also because it was an appropriate policy for the hospital to adopt. 8. Ms Norton swore that she had learned from the incident and now accepted that it was not appropriate to call children by these names and that indeed staff had since been directed not to use animal names but to simply refer to these infants as "the baby". 9. She made a sincere apology for any offence that was caused to the applicant as a result of what she said. She swore that she had not intended to cause harm or distress and actively provides care and compassion in her work. She apologised for any hurt or distress caused. 10. When she was cross examined on this evidence, it was not put to her that she was in fact, using a racist connotation or meant it in a derogatory or negative way. She gave evidence of having been to cultural awareness training, particularly concerning the Aboriginal community before this incident and had done training and gone to "Country" at Walgett as part of that training and saw local indigenous sites in the town. 11. Miss Norton impressed us as a genuine and honest witness with a clear recollection of both words used and the context in which they were used. Although there was some slight variation in terms of when it was, around the treatment being given to the baby, that the words were used ,it does not seem to us that there is any reason to doubt her version of what words were used and what the context was, albeit that there are minor inconsistencies about when, around the treatment of the child and her dealings with his mother, that the words were used. 12. There is other contemporaneous evidence which we prefer to that of the applicant, as to what was said that day. First of all, there is the aforementioned Messenger message to Ms Norton, which refers to the complaint as being that the words used were "little monkey". 13. There is evidence to corroborate what Ms Norton said were the words used... There is evidence that shortly after the incident, the applicant complained to a senior midwife that the newborn had been referred to as a "cheeky monkey" the previous day. This evidence appeared in the affidavit of the general manager of the respondent Debra Bickerton. 14. The investigator was told by the applicant that she had taken the Senior Matron aside and explained her distress at the term being used, to which the senior matron replied that they call all the babies animal names there. 15. That investigative report also records Ms Norton as having admitted that she did ask if she could weigh and measure the "cheeky monkey" but didn't mean anything racist by it and didn't mean to upset the family. 16. There was no doubt that the applicant was upset by what she heard although in our view, she is mistaken as to precisely what it was and what the context in which it was said. We prefer the evidence of Ms Norton in that regard and accept her evidence that she had no ill intent in using those words. 17. That of course is not the end of the matter because it is well accepted that motive or intent are not relevant or determinative, and that racial abuse is capable of being both unlawful discrimination and vilification 18. It may be readily accepted that there is a significant level of sensitivity to the description in some circumstances of indigenous and other people of colour by reference to the expression monkey or ape. And there are many examples to be found in recent history of offence being taken to that expression being used to refer to players of colour on the sporting field. 19. The use of that expression monkey can imply that because of the race of a person he or she is less than human or has monkey like characteristics. In our view, the context here was entirely different and it might be readily accepted that it was not used in that offensive way or intended to offend, but was used in the context of familiarity with cute or small little beings being handed to or from a mother or a mother's aunt. That was a form of endearment and most certainly in our view not conduct which was either discriminatory on the ground of the applicant's race or involved treating the applicant less favourably than in the same circumstances as a non aboriginal family member would have been treated in the same situation. 20. Having regard to the essential nature of the relevant act, rather than the Ms Norton's motive or intention or subjective purpose we find that what was said by Ms Norton was not an act "done on the ground of the person's race" and it was not objectively concerned with a characteristic that appertains generally to persons of the applicant's race or a characteristic that is generally imputed to persons of that race. 21. We find that there was no contravention of Section 19 of the AD Act in that the respondent did not discriminate against the applicant on the ground of race in the relevant sense. The Facebook Messenger message issue 1. In final submissions, the applicant added to her claims a contention made for the first time, that another hospital staff member sending a Facebook Messenger message to Ms Norton the day after the birth, notifying her, as she put it that a formal complaint had been made about her calling the baby "little monkey" amounted to public vilification of her because others may have seen it. 2. The latter aspect of the case can be dealt with in short compass because not only did the applicant's material not seek any relief in relation to that issue, but there is no evidence whatsoever that any other person saw or became aware of what was contained in the message to her. The applicant could not point to evidence that suggested that there was any public element to the sending of that message. Ms Norton gave oral evidence at the hearing before us but was not cross examined with a view to suggesting that anyone else did see it or may have seen it. The author of the message is described as the "midwife in charge of the morning shift on the day after" the principal incident. The message also referred to the midwife saying that she was sure that Ms Norton meant no offence by it, but wanted to give her a heads up. 3. We do not propose to deal further with this aspect of the case because, in our view, it could not be said that a message, which identified that, as indeed had been the case, the applicant had made a formal complaint about Ms Norton calling the baby a little monkey was anything but an accurate and informed statement as to what it was that the applicant had indeed made a complaint about. It also involves conduct by a person who was not specifically identified except as the midwife in charge of the morning shift, whom we infer was someone who worked for the respondent. It is conduct quite separate from that of the 18th August 2022 incident. 4. We do not consider that there is any basis for a contention that if a person other than Ms Norton did in fact see the message and as to which there is no evidence whatsoever, that the providing of that information which was entirely benign would incite hatred towards or serious contempt for or severe ridicule of the applicant. The applicant did not cross-examine Ms Norton with a view to establishing that anyone but she saw it, and it was in our view an entirely legitimate and lawful matter that she be informed of the complaint against her. The vilification case-were the comments capable of inciting hatred towards, serious contempt for, or severe ridicule of, a person 1. The factual findings we have made above are also relevant to the vilification case. We have set out earlier what the relevant provisions of the AD Act provide. 2. Under S 20C of the AD Act, as is noted above, it is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group 3. The words "hatred", "serious contempt" and "severe ridicule" are to be given their ordinary meaning: Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [40]; Ekermawi v Jones (No 3) [2014] NSWCATAD 58 at [33]. In Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [40], the Tribunal set out the ordinary meaning of "serious", "contempt", "severe" and "ridicule", as defined in the Macquarie Dictionary and Oxford Dictionary: * ""serious" means "important, grave" (Oxford); "weighty, important" (Macquarie); * "contempt" means "the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account" Oxford); the feeling with which one regards anything considered mean, vile, or worthless (Macquarie); * "severe" means "rigorous, strict or harsh" (Oxford); "harsh, extreme" (Macquarie); * "ridicule" means "subject to ridicule or mockery; make fun of, deride, laugh at" (Oxford); "words or actions intended to excite contemptuous laughter at a person or thing; derision" (Macquarie)." 1. In Riley v State of NSW (Department of Education) [2019] NSWCATAD 223 [129] to [133], the Tribunal considered the test for establishing whether comments were capable of constituting racial vilification as expressed in Sunol v Collier (No 2) [2012] NSWCA 44; (2012) 260 FLR 414 (Sunol No 2). 2. This approach has also been adopted by this Tribunal in vilification cases such as Comensoli v Passas [2019] NSWCATAD 155, Lamb v Campbell [2021] NSWCATAD 103, Ekermawi v Commissioner of Police, NSW Police Force [2019] NSWCATAD 79, Malenha v Sullivan [2017] NSWCATAD 222. In Margan v Manias [2015] NSWCA 388 the Court of Appeal adopted the findings in Sunol No 2 and also noted that: 1. there can be no incitement in the absence of an audience (at [76]); 2. the identification and nature of the audience are essential for the purpose of determining objectively whether an ordinary member of that audience would be likely to be incited by the public act (at [78]); 3. it is not necessary that any person actually be incited (at [12]); and 4. it is necessary that the words used are capable of inciting hatred, serious contempt, or severe ridicule (at [11]). 1. The motive or intention of the respondent to incite is irrelevant to the question of whether vilification has occurred for the purposes of s20B(a) and/or (b) of the Act: John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35 at [10]; Burns v Dye [2002] NSWADT 32 at [21]; Veloskey v Karagiannakis [2002] NSWADTAP 18 at [24]; Burns v Cunningham [2011] NSWADT 240 at [69]; Sunol No 2 at [30]-[31].In the latter case the Court of Appeal said it was prepared to proceed on this basis without finally deciding the issue but observed that it is consistent with the approach taken by the High Court in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349. In that case Mason CJ and Gaudron J made the following comments: "However, the principle that requires that the particular provisions of the Act must be read in the light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose. In the present case, the statutory objects, which are stated in the long title to the Act, include, among other things, 'to render unlawful certain Kinds of Discrimination, to promote Equality of Opportunity between persons of different status'. It would, in our view, significantly impede or hinder the attainment of the objects of the Act if s.17(1) were to be interpreted as requiring an intention or motive on the part of the alleged discriminator that is related to the status or private life of the person less favourably treated. It is enough that the material difference in treatment is based on the status or private life of that person, notwithstanding an absence of intention or motive on the part of the alleged discriminator relating to either of those considerations." (at 359); see Deane J agreeing at 382; but see McHugh J at 401. 1. Were the position otherwise, ignorance and prejudice could be excused on the basis that there was "no intention" to vilify. 2. For the reasons we have already given, the expression "on the ground of" means that race must be one of the real, general true reasons for the incitement: Jones v Trad [2013] NSWCA 389 at [98]. 3. Whether the use of some racially based expression in a particular context suggests that it is capable of being more than an insult or is likely to incite hatred, severe ridicule or serious contempt requires it to be considered in the precise factual matrix in which it is spoken. 4. In the context of homosexual vilification in Burns v Dye [2002] NSW ADT 32. It was said that: 61. While we accept that over time certain terms of abuse take on a more general connotation we find that the words 'poofter' and 'faggot' retain a specific meaning: they are derisory terms used for homosexual males. (In certain circumstances, such as when used by homosexual male friends between themselves, they may not be used in an insulting way but it is clear that they were insulting in the circumstances of this case.) 62. It does not follow automatically that verbal abuse directed at a homosexual person or persons that includes words understood to be insulting of homosexuals, is capable of inciting the requisite ill-feeling required to establish a complaint of homosexual vilification. The circumstances in which the abuse occurred are critical. Relevant factors will include the context in which the abuse occurred, the tone of voice used by the alleged vilifier and the observable relationship between the vilifier and his/her victim. 63. To establish capacity to incite, it is not enough in our view to merely prove that the offending communication identified or 'outed' Mr Burns as homosexual. Nor is it sufficient to prove that the victim was deeply wounded or concerned for their privacy, or indeed safety. It is also insufficient to establish that the conduct simply conveyed hatred towards a person, or the expression of serious contempt or severe ridicule: (Wagga Wagga Aboriginal Action Group v Eldridge). 64 Mr Burns must establish, on balance, that all or part of Mr Dye's conduct was capable of urging on, stimulating, or prompting to action the ordinary reasonable person to the requisite feelings of ill will towards Mr Burns. How would such person react on hearing Mr Dye's attack on Mr Burns? In our view a section of the community would have dismissed this conduct as the rantings of a drunken, possibly mentally-ill individual and, if anything, the attack may have engendered feelings of hatred towards, serious contempt for, or severe ridicule of Mr Dye himself." 1. These principles were recently reviewed and applied in a racial vilification case in Huenerberg v Murray [2023] QCAT 175 engaged in racial vilification of the complainant of German ethnicity, essentially by making an offensive and insulting remark by calling him a "f..king German c..t". The incident occurred on or about the front boundaries of neighbouring residential properties and those present were only members of the respective parties' families and no strangers or unrelated members of the public were present. 2. Under s 20C of the AD Act the public act of course must be one which incites hatred towards, serious contempt for, or severe ridicule of a person or group of persons on the ground of race. That element is not shown merely by showing that a person has been subjected to personal insults or taunts which relate to one's race or country of origin. Moreover, calling a person by names such as "dog" or "terrorist", even if said to a person because they were in some way foreign, has been said to not amount to vilification. 3. In Deen v Lamb [2001] QADT 20 the then President of the Qld Anti-discrimination Tribunal said in the context of a racial vilification case: - "The question arises how one determines whether a publication has the character referred to in s.124A. The test is plainly an objective one rather than a subjective one. In the law of defamation the test adopted has been to assume a reader who is of fair average intelligence, and who is neither perverse nor morbid, nor of a suspicious mind, nor one who is avid of scandal: see Lewis v. Daily Telegraph (1964) AC 234 at 259. This test has been adopted in the context of racial vilification legislation: see Kazak v. John Fairfax (2000) NSWADT 77 at paras. 31-34. I agree that that is the appropriate test, but would add that it is also necessary to exclude on the one hand those persons who are either over-sensitive to criticism of their race, religion or culture, and on the other hand, those who are too thick-skinned to appreciate the nature of an act as one which has the relevant tendency to incite. cf. Lewis v. Daily Telegraph at 259." 1. In Wilson & McCollum v Lawson & Anor [2008] QADT 27 it was held, in relation to this issue in the context of a case of vilification of the grounds of sexuality: - "The requirement that there be an incitement to another to hate goes hand in hand with the requirement that there be communication to the public or in other respects that there be a public act. In the absence of those elements, the abuse of a person on the grounds of their sexuality, including showing hatred or ridicule of the person on the grounds of homosexuality, does not amount to vilification. It is the propensity to incite hatred in other members of the public, by the manifestation of the hatred of the speaker that is intrinsic to the act of vilification. In my view therefore, a private conversation between one person and another which cannot be, nor is overheard by any other person, does not have the essential element of it being a public act or one which is capable of inciting hatred towards the other person to that conversation. If the conduct in question amounts to the making of oral statements, then for the act to be a public act it must be a form of communication "to the public" within the meaning of s.4A of the Act. In my opinion, where the conduct was of that kind, the observability of the act in the sense that the public could see that there was an incident occurring, but not necessarily hear what was being said, would not be sufficient to demonstrate that it was a public act. So, for example, in this case, the fact that neighbours could see Mrs Lawson talking to either of the complainants at the time she was referring to them as "faggots" would not by itself establish that the act was a public one. It would be necessary that her remarks be audible to others from where they were." 1. At paragraphs [53] to [64] of the decision in Wilson & McCollum v Lawson & Anor the member reviewed the case law on this subject and said: 53. There is little assistance to be found in the case law concerning what is required to establish communication to the public in circumstances in which personal statements have been made by the offender directly to the victim of the alleged vilification. 54. An internet website containing material which vilified on the grounds of homosexuality was found to be a 'public act' within the meaning of the equivalent provision of the Anti-Discrimination Act 1977 (NSW), Division 4. Similarly, a broadcast on a public radio station has been held to be a 'public act'. A complaint of HIV and homosexual vilification was upheld in R v D & E Marinkovic. In that case a three member panel of the Equal Opportunity Tribunal of New South Wales was called upon to consider a claim of vilification concerning comments made by a married couple who lived in the same block of units directly above the complainant's unit. Various expressions were used over a period of about a year, including describing him as a 'poofter', 'gay faggot', 'I don't want faggots living nearby baby', 'Aids ridden cunt'. The evidence is that these comments were variously made and yelled from the balcony of the unit above. On another occasion the complainant came home to find a letter which had been written to the respondents by a community justice centre attached to his front door with sticky tape which had been annotated by the respondents with comments such as 'poofy bastard', 'can't you read English, faggot', and in two places where his name was mentioned in the letter the respondents had crossed it out and written the word 'faggot'. The Tribunal found that the door on which the letter was stuck was in a corridor that was used by other residents in the building and by members of the public. The Tribunal found, although without having conducted any particular analysis of the facts, that the statements and conduct of the respondents were public acts. There was no direct evidence that any other resident saw the letter posted to the door but clearly the circumstances were that any person who passed that way would have been able to have observed it. The day after the offending letter was posted on the door, a copy had been slid by the respondents under the complainant's door. One could easily infer in those circumstances that the posting of it on the door occurred with the intent that other neighbours read it. On at least one of the occasions when abuse was yelled over the balcony, the complainant was with a friend who could hear it. 55. In Peters v Constance, [2005] QADT 9 an employee of a debt collection agency that went to the house of a homosexual man who, when he refused to answer the door called out loudly from the front of the home that he was a paedophile. The Tribunal held that whilst there was no evidence that anyone other than the complainant had heard the accusation, there was evidence which was accepted that the neighbours in the vicinity were likely to have heard what went on outside the front of the house that morning and that this was sufficient for the act to be public within the meaning of s.124A of the Act. 56. In Menzies & Ors v Owen, [2008] QADT 20 one of the complaints was that the respondent drove a car the rear bumper of which affixed a sticker which read, "Gay rights? Under God's law the only 'rights' gays have is the right to die. Lev.20:13'57". A Member of the QCAT Tribunal held that 'the vehicle was driven to the Council chambers on 23 August 2005 and parked outside the chambers. It was observable by members of the public when it was being driven and when it was left outside the chambers. The display of the bumper sticker involved a form of communication to the public and it was also the display of a sign that was observable by the public'. 58. Another incident in that case concerned the same respondent there, who was a local councillor, providing a report to the Cooloola Shire Council. The report was published by the Council in the agenda for its meeting. The content of the report has held to have 'incited hatred for and severe contempt of homosexuals because they engage in sexual acts with members of the same sex and because Mr Owen ascribes paedophilic tendencies towards them'. It was held that the incitement was on the basis of the sexuality of homosexuals. The respondent had argued that the provision of the report to the chief executive officer was a private act and the decision to publish the report in the agenda was one made by the Council, for which he was not responsible. 59. The Member found at paragraphs 26-27 that the respondent: - ... wrote the report and handed it to the chief executive officer of the Council. The report was said to be 'For Council's consideration'. The natural and probable consequence was that the chief executive officer would cause the report to be published in the agenda. That was what in fact happened. I also find that Mr Owen intended that consequence. The publication of the report in the agenda was a form of communication to the public. In these circumstances, I am satisfied that Mr Owen engaged in a public act by writing and providing the report to the chief executive officer.' 1. Applying these principles, it is clear and we find that that the statement used in the present case was not one which incites hatred towards, serious contempt for, or severe ridicule of a person or group of persons on the ground of race. Was the making of the statement a public act within the meaning of the AD Act 1. S 20B of the AD Act provides as a non-exhaustive definition of public act (a) any form of communication to the public, including speaking, writing, printing displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and (b) any conduct (not being a form of communication referred to in paragraph (a) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and (c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group 2. A statement to 'the public' has been held to include the possibility of a statement being overheard by or visible to passers-by, even if the act took place on private property. R v Ashley [1991] NTSC 19; (1991) 77 NTR 27 at 30; Kane v Church of Jesus Christ Christian Aryan Nations (No 3) (1992) 18 CHHR 268. 3. In Anderson v Thompson, [2001] NSWADT 11 the Tribunal held that abusive words spoken on the stairwell of a block of units constituted a form of communication to the public because although there were no eyewitnesses there was evidence that the words were spoken with such force, they could be overheard by other residents. 4. The definition of public act including "any form of communication to the public" is in very broad terms: Jones v Trad (2013) 86 NSWLR 241 at [43] per Ward JA. A "public act" does not necessarily mean that the conduct or communication took place in a public place. In Lamb v Campbell [2021] NSWCATAD 103 at [22] the Tribunal identified that the proper test is whether the Respondent engaged in a 'public act', rather than an 'act in public'. The Tribunal went on to say at [29] that "people can commit public acts alone in a private location, for example via the internet or other forms of communication". 5. In Campbell v Kirstenfeldt [2008] FMCA 1356 a complainant alleged offensive behaviour based on race or colour, which is unlawful conduct under s.18C of the Racial Discrimination Act 1975 (Cth) ('the RD Act'). The allegation was to the effect that there were a number of comments passed over a neighbourhood fence to an aboriginal person who was standing outside watering and gardening while her son and some of his friends (some of whom were aboriginal and some of whom were not) were playing cricket to the effect of 'you nigger, coon black bastard, go back where you belong in the scrub'. Also, in front of another neighbour, calling her 'nigger, coon'. 6. The alleged conduct was held to be unlawful under s.18C of the RD Act, which requires the conduct to be an act performed 'otherwise than in private'. Section 18C provided relevantly that: - (2) For the purposes of subsection (1), an act is taken not to be done in private if it: (a) causes words, sounds, images or writing to be communicated to the public; or (b) is done in a public place; or (c) is done in the sight or hearing of people who are in a public place. (3) In this section: public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.' 1. In that case of Campbell v Kirstenfeldt the Court held as follows: 'In relation to each incident the Court is satisfied that the act was one performed otherwise than in private. This is because in relation to each of the incidents they have occurred either: a. over a neighbourhood fence; or being shouted, or at least capable of being heard, between one property and another; or b. being capable of being heard in public being said on one property to people either on a public footpath or in a public reserve across the road from the house; or c. given that each of the houses faces directly onto a footpath and road that the acts complained of (being words spoken) in each case would, the Court finds, have been capable of being heard in a public place, being either the footpath, or the road or the park reserve; and d. were therefore not made in private, and in any event, were not private exchanges, but exchanges heard by the complainant, and members of her family on some occasions, persons who are not members of her family on other occasions (including the neighbour who was with the respondent on at least two occasions), or generally capable of being heard in the neighbourhood.' Taken as a whole, it is clear to me that there has been a regular pattern of verbal abuse and insult which has occurred by both of the respondents and which is directly referrable to the complainants' homosexuality. Whilst it may well be true that the abuse was personal abuse, designed to be hurtful, and to inflict damage as part of an ongoing neighbourhood dispute where abuse may well have passed from all sides, it does not mean that the conduct complained of did not amount to vilification if it amounted to a communication to the public." 1. The respondent relies upon statements in Barry v Futter [2011] NSWADT 205 [74]-[76] for the propositions that: 72.The purpose of the vilification provisions of the ADA, which include vilification on transgender grounds, is to reduce the incidence of violence and abuse, whether physical or verbal, against certain persons or groups, without at the same time unduly restricting the rights of members of society to hold and express views including those which are unpopular or which some might find offensive. This consideration also supports construing " public act " in s 38S, in the light of s 38R, as applying to spoken communications to the public but not to private conversations or discussions even if they occur in a public place. 73.Accordingly, the Tribunal concludes that "public act " in s 38S, having regard to the provisions of s 38R, does not include a private conversation even if that conversation takes place in a public place. Whether a spoken communication amounts to a private conversation or a communication to the public will depend upon all the circumstances in which the communication occurs. 74.Whilst it is not possible to identify in advance all the types of circumstances that may be relevant in determining whether a communication by speaking is public or private, there are a number of factors that may indicate that the communication is to the public rather than a private communication and that might be relevant in the present case. First, where a speaker addresses an audience irrespective of whether there is any pre-existing relationship between the members of the audience and the speaker, the communication is more likely to be to the public. In that case, it is often appropriate to conclude that the speaker is addressing them in their capacities as members of the public and not because of their relationship. By way of contrast, speaking only to a family member, friend or acquaintance, fellow employee or co-participant in a joint activity, in that capacity, may be more likely to involve a private communication rather than a " public act ". 75.Secondly, the size of the audience may also indicate whether the communication is public or private. A speaker addressing a group of people is more likely to be communicating to the public than a speaker who is having a one on one conversation with another person. Nonetheless, a person who speaks to a series of people individually and seeks to communicate essentially the same message may be seen as speaking to a wider audience and not just engaging in private conversations. 76.Thirdly, the nature of the communication, the intentions of the parties to the communication and the circumstances giving rise to it may also give some indication of whether the communication is properly characterised as a public communication or a private conversation. 1. The findings of fact in that case were that what occurred in the context of transgender vilification allegations was entirely in a private conversation between the 2 persons involved. It was found that: 77. In the present case, the relevant conduct was one conversation between Ms Futter and Mr Bianco. They were work colleagues who were both part of the day shift crew who were managing the traffic while construction work was carried out on the Narwee railway underpass. Ms Futter was talking to Mr Bianco about another employee who worked on same site as they did. There was no other person who could hear, or even overhear, their conversation. There was no other conduct observable by any member of the public which would have conveyed to such a member of the public the content of the conversation between Ms Futter and Mr Bianco. All that would have been observed was a conversation between two members of the traffic control crew. 78. In these circumstances, the Tribunal concludes that what occurred was a private conversation between Ms Futter and Mr Bianco. There is nothing to indicate that Ms Futter was intending to express her views to the public at large, as opposed to talking to a fellow worker about a co-worker. Apart from the fact that the conversation occurred in a public place, there were no other factors that would point to what Ms Futter said being a communication to the public. Accordingly, the Tribunal finds that Ms Futter's conduct did not amount to a " public act " within the meaning of s 38S, having regard to s 38R, of the ADA." 1. The first thing to be observed that this case did not involve an entirely private conversation between the 2 persons involved as was the case in Barry v Futter. Secondly the three factors which it was said "may" indicate a communication is public, rather than private were, first, the relationship between speaker and audience. Secondly, the size of the audience, although a communication could be public if it is expressed to a series of people at different times. Thirdly, the nature of the communication and the circumstances in which it arises. 2. It is critical that the language of the section be properly construed, and not treated as replaced by general guidelines as to what may indicate whether something is private or public. 3. The paragraphs relied upon from Barry v Futter referenced above have been adopted and applied in several cases in this tribunal, including recently in Wolf v Secretary, Department of Education [2023] NSWCATAD 202 at [41]. In that case a teacher making a remark to a class was held to have done so as a public act. 4. The respondent submits that the midwife's comment was not a "public act" in the sense required under the AD Act, for the several reasons. 5. First, it is said that the communication did not occur in a public place because the birthing suite was not open to the general public in the sense that anyone could come and go as they wished. The respondent submits that while this is not necessarily determinative, especially where there is a possibility of the communication being overheard, in this case there is no evidence to suggest that it was intended to be, or was likely to be, heard or observed by anyone other than those in the room. 6. The short answer to this is that even if the birthing suite was not open to the general public in the sense that anyone could come and go as they wished, that is not what is required by the section. That anyone could come and go as they wished is an issue concerned with access to a space, not its public character. 7. Secondly, the respondent submits, everyone in the birthing suite had a "pre-existing relationship". It submits that in addition to the midwife and the Applicant, Ms Kelly, Ms Pallister, and other hospital staff were also in the birthing suite when the comment was made. That clearly was so. It submits that the hospital staff were fellow employees, and they each had the relationship of medical professional and patient/family member with the Applicant, the newborn baby Jahrye, Ms Kelly and Ms Pallister. It submits that the midwife's comment was made to the Applicant on the basis of their pre-existing relationship. 8. That was not the case in our view. While the hospital staff were fellow employees of Ms Norton, she was not communicating to them. They were in a public hospital facility not a private home. They were not in a personal relationship with the Applicant, who was a bystander to the birth of a family member. There is no evidence that they each had the relationship of medical professional and patient/family member with the Applicant, Jahrye, Ms Kelly and Ms Pallister 9. Thirdly, the respondent submits, they were all involved in the "joint activity", that is, the birth of a child. It submits that the comment or communication was relevant to that joint activity. We reject this contention on the basis that it is not supported by the evidence. But even if they were all involved in the "joint activity", it is no less a public act because of it, than racial abuse at a football match where those present were involved in the "joint activity" of watching the game. 10. Fourthly, the respondent submits, the intentions and circumstances of the parties suggest that the communication ought properly to be characterised as a private communication. The respondent submits that the purpose of the communication was the midwife obtaining access to Jahrye so that necessary tests could be carried out and that there is nothing to suggest that the communication was intended to be heard by anyone beyond the Applicant. A private communication and that the purpose of the communication was the midwife obtaining access to Jahrye so that necessary tests could be carried out. 11. The evidence about this aspect is unsatisfactory because no one focusses in their evidence on who exactly was present in what kind of proximity to Ms Norton. We have already accepted that the purpose of the communication was the midwife obtaining access to Jahrye so that necessary tests could be carried out but one could have that purpose and still commit a public act. Ms Norton says there was no reaction from anyone in the room, although that does not mean that they did not hear it. They probably thought it unremarkable, since it was an expression that had currency in this part of the hospital. The applicant said in her statement that it was said in a "loud tone "and that Kimesha her niece in law said she heard it. She was not cross examined or challenged on this. We accept that unchallenged evidence. 12. The matter is not without difficulty because of the poor state of the evidence, but on balance we consider that the making of the statement was a public act because of where it was said, in the presence of disparate individuals, and said loudly enough for others in the room to hear. It was said in the context of the midwife performing public duties in a public hospital and it was said to a person who was not in treatment per se. Was there racial vilification 1. The findings that we have made above are also relevant to the case which contends that there was racial vilification. We have also identified the legal principles that apply, and they apply to both. 2. We have discussed in detail the relevant legal principles. A useful summary of the parameters of unlawful vilification in NSW was given in 2012 in the NSW Court of Appeal in the earlier mentioned decision in Sunol v Collier [No 2]. Chief Justice Bathurst stated ay [26] ff: (a) Incite means to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement. (b) It is not necessary for a contravention that a person actually be incited. (c) It is not sufficient that the speech, conduct, or publication concerned conveys hatred towards, serious contempt for, or serious ridicule of … [the targeted group]; it must be capable of inciting such emotions in an ordinary member of the class to whom it is directed. (d) It is not necessary to establish an intention to incite. (e) For the public act to be reasonable within the meaning of … [the sub-section 2 exemption categories] it must bear a rational relationship to the protected activity and not be disproportionate to what is necessary to carry it out. (f) For the act in question to be done in good faith, it must be engaged in bona fide and for the protected purpose. 1. Allsop P said in Sunol v Collier [No 2] at [61]-[62]. Subject to the following comments, I agree with the Chief Justice as to the construction of subsection (1). The question of the audience against which the public act is to be assessed for the purposes of s 49ZT (1) may be very important in any individual case. It will be intimately connected with the whole context of the public act. Thus, in an emotionally charged public meeting where reason has been pushed aside by passion or hatred, it may be inappropriate to posit the standard of the "reasonable" member of the class which may be aptly described as a group of impassioned bigots. The question is ultimately one of fact in the context in which the act takes place. If the general public is being addressed, bearing in mind the approach conformable with Brown and Coco, the ordinary and reasonable members of the public may be appropriate to consider. Further, satisfaction of s 49ZT (1) is not necessarily to be assumed or concluded by rude, indecorous, base or insulting language that reflects some dislike of, or opposition to, homosexuality. The section provides for an act to incite hatred, serious contempt, or severe ridicule. Fine linguistic distinctions should of course not be drawn which may deflect attention from the language of the statute. The words of the statute are to be applied with a recognition of the degree or quality of the act contemplated by the language. The act is to be assessed by reference to the context in which it takes place, including the audience or likely audience. 1. Although Sunol v Collier [No 2]. involved alleged homosexual vilification: Anti-Discrimination Act 1977 (NSW) s 49ZT, the summary applies equally to the scope of unlawful racial vilification. That point has been subsequently confirmed by the NSW Court of Appeal in a racial vilification case: Jones v Trad (2013) 86 NSWLR 241, 253 [52] (Ward JA) 2. In our view in the context in which the statement was made, it was incapable of inciting hatred or serious contempt or ridicule in the relevant sense in those who were the audience or potential audience. 3. There is no suggestion that apart from the applicant that any others present, the Doctor, the other nurses, the mother or the niece in law reacted with any kind of offence to the statement. The mother of the child either did not hear it or did not react to it. 4. The words themselves of course have to be considered in context to see whether they would incite hatred or serious contempt or ridicule in the relevant sense. 5. We have accepted the evidence that these words or words like them were in common use by hospital staff in a non- pejorative way before this incident. 6. There are and have long been many monkey idioms used in English. They include "to monkey around", which is to behave in a silly or careless way, to "make a monkey out of someone" which means to make someone look silly, to engage in "monkey business" which means doing something mischievous, and "monkey see, monkey do" which refers to copying another's actions without putting much thought into it. Another is the expression used in this case, cheeky monkey and which an expression we use when someone is being mischievous and playful". See; https://www.abc.net.au/education/learn-english/learn-english-7-monkey-idioms-used-in-english/8837458. 7. There are many other uses of the idiom monkey, which do not contain any pejorative element for example that references a primitive or apelike or undeveloped culture or personality. Many have positive or familiar connotations in widespread use amongst parents and others. An example is the use of the word "kid" to describe children in an affectionate way. It would be wrong to suggest that this implies that the children referred to in this way have the qualities of young goats or is used in a pejorative way. There are many things about young goats, which, if you had them living in your house, would be undesirable but that is not the objective connotation the wors carries and no one would suggest that in its ordinary use, it carried any sort of pejorative connotation Similarly, calling someone a little monkey could potentially have a pejorative meaning but generally one see it used in a sense that referred to something cute and cuddly, such as an infant child might be. Dame Edna Everage was known to refer to her audience as her possums. In context, no one ever took that to be indicating that she held her audience up as having the many undesirable features of possums. 8. According to the Oxford English Dictionary the earliest known use of the noun "cheeky monkey" is in the 1880s, in the writing of 'Eona'. The expression is in wide use and for example is the title of a number of books and commercially available products, including beer. According to the Australian national library a well-known comedian Tim Ferguson has written a book on comedy writing called "The Cheeky Monkey; see; https://catalogue.nla.gov.au/catalog/7245561. 9. That is not to say that it could not mean or be used in a different way and context. But as we have held already, at the time she made the statement Ms Norton was an assisting midwife, there at the end of a difficult labour. She was assisting the paediatric registrar and was providing respiratory support to the baby. The infant himself was in difficulty and was born stunned and had significant respiratory distress. It was common for her to use the expression "cheeky little monkey" and did so on that occasion to lighten the mood and to relieve stress in what was a stressful situation. She swore and we accept that she used that expression in an endearing way and not in a negative or derogatory way. She said, and we have accepted, that she had heard other midwives and nurses use the expression silly or cheeky little monkey and it had never been used in a derogatory way on any of those occasions. She was making the statement as a form of stress relief in a stressful situation to refer to the infant with words of endearment to the applicant who was holding him and from whom she wanted to retrieve him. 10. In our view, the relevant statement was not one that commands, requests, proposals, actions or encouragement of any kind so as to be incitement. 11. In our view, the relevant statement was not one that objectively was likely to incite hatred", "serious contempt" and "severe ridicule of the applicant or any of her family members on the ground of the race of the applicant or the child or any other family member and nor did it do so in fact. It is probable that the Applicant misheard what was said, did not understand the context, did not hear the full expression used, and took it to be a racial slur, which it was not. 12. In our view the statement was not capable of urging on, stimulating, or prompting to action the ordinary reasonable person or for that matter those present in the birthing suite who might have heard it or did hear it, if there were any, to the requisite feelings of ill will towards the applicant, although those who may or may not have heard it, were unlikely themselves to have had that reaction apart from the applicant herself. Complaints about the investigation of her complaint 1. The applicant also sought to advance a case that after she made a complaint about the statements the day following the incident, she did not hear anything more from the hospital. She also said that within days of the incident she spoke to Samantha Quamby whom she believed to be the CEO of the hospital. The applicant gave evidence and we accept, that Ms Quamby told the applicant that the supervisor should have "owned" the circumstances around the making of the statement. Ms Quamby properly said that in the circumstances, the incident should have been dealt with in a better way and acknowledged that it was wrong to call children monkeys and also that she said she would look into it. 2. The applicant also swore and we accept, that she spoke to someone else who called her about the complaint (who must have been the investigator Ms Simpson Acting Maternity Unit Manager) and to whom she recounted what had happened and that this person said she would get back to her. It is reasonable to infer that this was the conversation she had with the investigator Ms Simpson, who later reported on it and referenced that conversation with the applicant. 3. The evidence of Ms Bickerton, which we accept as credible and reliable, is that although an investigator was appointed, and that after an independent investigation was conducted and ultimately an investigative report was provided both in the form of the report from Ms Simpson, (which is described as a consumer feedback form) but also in the form of a formal final report by Ms Simpson dated 28 October 2022, that this report and its outcome were never provided to the applicant. 4. Ms Bickerton's explanation for this was partially that the investigator was only there for a short time and the report was not followed through. Another explanation she proffered is that it was understood that the way in which the applicant wanted to be notified of the outcome was by telephone and not by provision of a written version of the report. We consider that explanation to be implausible, and unlikely to be the explanation for why she was not contacted. She was not telephoned and told of the outcome of the investigation nor provided with the written report. 5. In fact, the written report suggested that an apology ought to be provided to both the applicant and her niece. That did not happen in consequence of the issuance of the final report, although we accept that there had been two earlier verbal apologies offered to her in the discussions of 13 October 2022 between her and Samantha Quamby and also in the discussion with Ms Simpson, the investigator. 6. After a formal complaint was made to the Board on 4 September 2023 the respondent issued the applicant with a statement and written apology, addressed to and intended for her but not directly given to her by the respondent itself but given to her later by the Anti-Discrimination Board. In that statement the respondent acknowledged the "hurt distress and trauma caused" by the comment and said it was regretted. It explained the steps that had been taken since to ensure it would not happen again and contained an apology for failing to report back to her the result of the investigation in October 2022. 7. The suggestion, if there were to be one made that the failure to provide an earlier apology and/ or the failure to provide her with a copy of the investigative report or to report to her was in some way discriminatory of her on the ground of race is rejected because the evidence simply does not sustain that conclusion. The failure was a mere oversight and did not occur on the ground of the person's race. Apology and compensation sought 1. Had we upheld the claims which are made it would have been necessary to assess whether to order an apology or make other orders and what that compensation and other relief the applicant should receive. 2. She did request there should be an apology by publication in numerous identified newspapers, both local and statewide, in which it was sought that the respondent apologise for the way these staff treated her and her family and the hospital made sure the staff had training around cultural awareness when dealing with citizens. 3. In our view that apology has effectively already been given, albeit not published in the way suggested. Had we upheld the claims or either of them, we would have declined to order an apology because no purpose could be achieved by it except potentially to publicly shame the hospital. We also have regard to the fact that two verbal and one written apology predated the hearing and that there was an additional apology forthcoming from Ms Norton given during the hearing itself. 4. As for monetary compensation, the evidence about the way in which the incident affected her was limited. She described it as having caused her hurt and caused her to be deeply upset, and she suffered humiliation and distress. We accept her evidence in that regard. There is no indication as to how long she suffered those outcomes. There is a clinical letter and there was oral testimony from a psychologist and Victim's Services Counsellor Ms Cooper of Integrative Healthcare who had already treated the applicant 38 times before this incident about unidentified issues, but which are referred to in the letter as related to ongoing intergenerational trauma. It also refers to the applicant having been exposed to ongoing racism since her childhood. 5. The respondent was invited to make, but made no submissions in relation to what quantum of compensation should be awarded for this hurt humiliation and distress but invited us to conclude that there should be no such compensation. No legal foundation for that proposition was identified. 6. As we mentioned earlier in these reasons, recently in Huenerberg v Murray [2023] QCAT 175 a party engaged in racial vilification of the applicant during an incident that occurred on or about the front boundaries of neighbouring residential properties and those present were only members of the respective parties' families and no strangers or unrelated members of the public were present. In that case there was an award of compensation of $3000.It was relevant that only family members of the 2 families were present and did hear or could have heard the comments. It was there held that the comments made by the respondent were capable of urging on, stimulating, or prompting to action the ordinary reasonable person to the requisite feelings of ill will towards the applicant, although those who heard it, the respondent's father and step brother, and the Applicant, his son and 2 grandsons are unlikely themselves to have had that reaction. 7. In all of the circumstances, doing the best we can with little direct evidence to assist us, we consider that an appropriate award of compensation had the claims been upheld in the present case, would have been an amount of $10,000. 8. Having regard to the findings we have made, the Applicant's complaints of discrimination and racial vilification are dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 May 2024